New Jersey restraints: the order to show cause replaces the summons

New Jersey does not have a rule called "temporary restraining order." It has an order to show cause, and if you file one at the start of a case it does something no other state's injunction practice does: it takes the place of the summons.

The order to show cause is the process

Rule 4:52-1(b):

If the order to show cause issues upon the filing of the complaint, no summons shall issue in the action if the order contains the name and address of plaintiff's attorney, if any, otherwise plaintiff's address; the time within which defendant shall serve and file an answer upon plaintiff or plaintiff's attorney as provided by these rules; and a notice to defendant that upon failure to so file and serve an answer, judgment by default may be rendered against the defendant for the relief demanded in the complaint.

Three things the order must contain, and they are the things a summons would have carried: the attorney's name and address, the time to answer, and the default warning. Get those into the order and no summons issues at all.

That is a drafting responsibility, not a court's. A plaintiff whose order to show cause omits the default warning has an order to show cause and no process.

Service follows the process rules too:

The order shall be served upon defendant together with a copy of the complaint and any supporting affidavits at least 10 days before the return date and in the manner prescribed by R. 4:4-3 and 4:4-4 for service of summons, unless the court orders a shorter or longer time or other manner of service.

Ten days before the return date, with the complaint and the affidavits, served the way a summons is served.

Thirty-five days to the return date

Rule 4:52-1(a) sets the outside limit for the whole application:

The order may further provide for the continuation of the restraint until the further order of the court and shall be returnable within such time after its entry as the court fixes but not exceeding 35 days after the date of its issuance, unless within such time the court on good cause shown extends the time for a like period or unless the defendant consents to an extension for a longer period.

Thirty-five days — far longer than the ten or fourteen days a restraining order lasts elsewhere, and long enough to serve, brief and be heard. One extension for a like period on good cause, or longer by consent.

Note the clause before it: the order "may further provide for the continuation of the restraint until the further order of the court." So the restraint need not expire on the return date. It can be written to continue, which is why the return date and the life of the restraint are two different questions.

Restraints without notice, and what "notice" means here

The order to show cause is available on filing a complaint seeking injunctive relief. But restraints are not automatic:

The order to show cause shall not, however, include any temporary restraints or other interim relief unless the defendant has either been given notice of the application or consents thereto or it appears from specific facts shown by affidavit or verified complaint that immediate and irreparable damage will probably result to the plaintiff before notice can be served or informally given and a hearing had thereon.

Three routes: notice, consent, or the specific-facts showing.

Two details in that third route repay attention. The standard is that damage "will probably result" — which is not the "will result" most states write. And the notice the plaintiff must show could not be given is notice "served or informally given." A telephone call counts. A plaintiff who could have called and did not has a harder showing than the rule's structure first suggests.

Where restraints do issue without notice, the order must give the defendant leave to move for dissolution or modification "on 2 days' notice or on such other notice as the court fixes in the order."

The hearing is recorded, and briefed

Rule 4:52-1(a) adds a requirement most states leave to local practice:

The proceedings shall be recorded verbatim provided that the application is made at a time and place where a reporter or sound recording device is available.

An ex parte application in New Jersey is on the record wherever the equipment exists. What counsel says to the court in the defendant's absence is preserved.

The return date has its own shape under Rule 4:52-1(c):

Oral testimony may be taken in the court's discretion on the return date of the order to show cause and on the return date of defendant's motion to dissolve or modify the temporary restraint. Briefs shall be submitted in support of the application for an interlocutory injunction.

Testimony is discretionary. Briefs are not — "shall be submitted." An application for interlocutory relief that arrives without a brief is not compliant.

Security is discretionary, and can come later

Rule 4:52-3 is a single sentence, and two things in it are unusual:

The court, on granting a temporary restraining order or interlocutory injunction or at any time thereafter, may require security or impose such other equitable terms as it deems appropriate.

"May require." Security is not a condition of issuance in New Jersey.

"Or at any time thereafter." The court can impose security after the order has issued, so a defendant that did not ask at the return date has not lost the point. The same sentence lets the court "impose such other equitable terms as it deems appropriate," which is broader than a bond.

A denial goes on the papers

Rule 4:52-5:

A statement of the denial of an application for a temporary restraining order or an interlocutory injunction shall be made on the complaint or affidavit which shall then be filed.

The refusal is recorded on the document that was presented, and that document is then filed. A refused application does not disappear — which is the practical answer to any thought of presenting it again elsewhere.

You cannot enjoin another Superior Court case

Rule 4:52-6:

No injunction or restraint shall be granted in one action to stay proceedings in another pending action in the Superior Court, but such relief may be sought on counterclaim or otherwise in the pending action.

New Jersey's Superior Court is a single statewide court, and the rule treats it that way. The remedy for parallel proceedings is not a second suit but an application inside the pending case.

During the pendency of an action, Rule 4:52-2 allows either a temporary restraint or an interlocutory injunction to be sought "either by motion or by order to show cause," with the order to show cause proceeding under Rule 4:52-1 "insofar as applicable."

Rule 4:52-7 preserves the labor injunction statute: "These rules do not supersede N.J.S. 2A:15-51 to 58 (Injunctions in Labor Disputes)."

A short checklist

If you are applying:

1. Put the summons content into the order — attorney's address, time to answer, default warning — if you want it to serve as process.
2. Serve 10 days before the return date, with the complaint and affidavits, under R. 4:4-3 and 4:4-4.
3. Show why notice could not be served or informally given. A phone call is notice for this purpose.
4. Ask for the restraint to continue until further order if you need it past the return date.
5. File a brief. The rule requires one for interlocutory relief.
6. Expect the ex parte proceeding to be recorded.

If you are restrained:

1. Move to dissolve on 2 days' notice, or as the order fixes.
2. Ask for security — it is discretionary, and the court may impose it at any time after the order too.
3. Check the return date against the 35-day limit and any extension.
4. If the dispute is already before the Superior Court, raise it there. A second action cannot enjoin the first.

Where these rules live

• N.J. Ct. R. 4:52-1 — Temporary restraint and interlocutory injunction; application on filing
• N.J. Ct. R. 4:52-2 — During pendency of action
• N.J. Ct. R. 4:52-3 — Security
• N.J. Ct. R. 4:52-4 — Form and scope of injunction
• N.J. Ct. R. 4:52-5 — Denial of application
• N.J. Ct. R. 4:52-6 — Stay of action in Superior Court
• Responding to a New Jersey complaint
• New Jersey motion to dismiss
• New Jersey summary judgment

This page explains what the rules say. It isn't legal advice, and the labor injunction statutes preserved by Rule 4:52-7 are not carried on this site.